This Weblog is a series of lessons and articles in fiqh according to the school of Abu Hanifah. They are not necessarily published in the order that they should be read.

Wednesday, January 12, 2005

Copyright claims are invalid

Is Copyright Property?

Since most will agree that selling a book or the like on the conditions that one cannot photocopy it or some other restriction on benefitting from it, the adherents of the western innovations or copyright and patent laws have instead claimed that Copyright is intellectual property, not physical property. They say that when you buy a book, CD, or other copyrighted material, you have purchased a physical copy of something that another owns the intellectual copyrights to. According to them, you have the ownership-based right to use this physical copy as you wish.

The answer to this claim is that, since the physical copy is mine, then I will take this physical book, copy it physically and sell another physical book. I am selling the physical book, not the "intellectual property." In Islam, when you buy a physical property you can use it as you please for halal purposes. If you say, "I sell you this book on the condition that you don't copy it" you have added a condition to benefit the seller which restricts the rights of the buyer to benefit from it. This is not valid, as knowledgeable people admit. It does not change anything to apply the label "intellectual copyright", because it is a benefit of the entity no matter what you call it. What is a right other than a right to benefit, i.e. other than the benefit itself when it comes down to it?

If you admit they are the benefit, then how can the ownership of the benefit be restricted? This is not something that is naturally required by the salescontract, so it must therefore be invalid. The argument should end here, but since the idea of ideas being property have been brought up, lets examine it:

Copying books is allowed by consensus

Muslims have been selling books for centuries without anyone ever claiming "copyright." This means that copying a book you have bought is lawful by "consensus by action." (اجماع فعلي) It is also clear that this is not something invented by muslims, nor has it even today become part of peoples customs (عرف). That is why, even in the west, copyright laws are only followed when there is significant threat of vigorous and expensive law enforcement practices. Since this is true for books, then it is also true that muslims have never considered ideas to be property.

The same is true for any goods sold, it is invalid to say: "I sell you this on the condition that you don't make something like it to sell." Since there is no scholar in history that has claimed that this is a valid condition, then there is consensus on this as well.

The idea of restricting copyrights is a bad innovation from the west

Can you show me even one example where a muslim has claimed intellectual copyright, and saleability of it, in the history of this ummah before this idea was imported from the west? Isn't it clear that this idea came from the west, and that it is a innovation in non-muslim law then attempted imported to islamic law? This alone should be enough to reject it. Nobody spoke of this until the west invented it.

The idea of intellectual property as ownership is anti-innovation and harmful to society

The original idea behind copyright and patent laws was to give inventors a short period of monopoly. Not for the sake of the producer, but to give an incentive for innovation that would benefit consumers. Of course, this is not what actually happened, because corporate lobbying has used these laws simply to extend their monopoly power.

In reality however, the argument that periods of copyright increase the amount of innovation in society can be countered by saying that:

Restricting copyrights and patents lets the innovator relax instead of continuing to push ahead to stay on top of the competition.

It prevents other innovative people from using the innovation to make something better still.

Competition is enough incentive for innovation. Businessmen are forced to innovate by competition.

Patents might restrict the use of the idea for others, even though they might have thought of it before the one who registered it as his. This is unfair to say the least.

Patent and copyright laws cause an incredible legal mess in the west (mainly for the benefit of the rich and resourceful) something islam has always been free from. For example, do you know that British Telecom is now claiming to have a patent on hyperlinks? Apparently they have in mind taxing internet users based on this. Or that Amazon.com has claimed its "one-click" patent, whereby the company has patented the idea of purchasing items with a single mouse click. Another crazy one is when companies are expected to start copyrighting the human genome that was recently mapped out. Aren't these laws just a symbol of greed and selfishness? These things are happening as a result of being consistent in applying the idea of ideas being owned.

In the New Yorker, The Talk Of The Town, Issue of 2003-07-14 and 21, Posted 2003-07-07, James Surowiecki said:

"Now the first thing someone with a good notion does is press the government to protect it. Priceline patented its reverse-auction method for selling cut-rate airline tickets. I.B.M. patented a method for keeping track of people waiting in line for the bathroom. Last month, Netflix, a company that runs an online DVD-rental subscription service, got a patent covering, among other things, the way its customers request titles and the way it sends out DVDs. And eBay is now in court appealing a verdict that it infringed on a Virginia man’s patent. The crime? Selling auctioned items at a fixed price. What gall.

For most of American history, it was next to impossible to get a patent on what the U.S. Patent and Trademark Office called “a mere method of doing business.” A business method was considered to be an idea—selling newspapers in the streets, delivering packages overnight—and ideas of this sort were not patentable. But in July, 1998, the U.S. Court of Appeals for the Federal Circuit did away with that principle. The case, State Street v. Signature Financial, involved software that Signature had written to enable it to administer mutual funds more efficiently. But the court’s language was broad enough to embrace any business process (as long as it was new and “nonobvious” and had a “useful, concrete, and tangible result”). The gates opened, and in the past five years thousands of business-method patents have been granted. One inventive soul won a patent for a system of using pictures to train janitors. Another got one for describing a way to cut hair with both hands."

Is this sort of madness in the best interest of the muslims?

Ideas as property is not analogous to ownership as known in Islam

If I read the sentence in a article, does this mean I cannot use a sentence of his without asking the author? If you say I can, then how does this fit with the idea of ownership? Where are you going to set the quantitative limit? Based on what islamic evidence? How are you going to do all this without contradicting the Prophet's sayings:

Which could be translated as: "Leave the people alone, Allah gives them their sustenance by them dealing with one another" and "The one who put a condition that is not in Allah's book does not get it, even if he set the condition a hundred times."

Moreover, no private property can be established in Islam without evidence to show that Islamic law treats it as such. This is because the things on earth are for orginally created for all, so noone can make a claim to own anything without a proper islamic legal proof of this being so:

خلق لكم ما في الأرض جميعا

The first thing one needs to do to establish the right for ownership is to define what is to be owned. How would you define intellectual property? How would you differ one such intellectual property from another? The only way that ideas get a shared, external, observable form is through words. Does anybody own the words used in a book? If not, how can they then claim ownership of the whole? If you say he owns the combination/ sequence, then I say I substitute one of the words and the sequence is no longer his--which renders any intellectual property laws meaningless.

Another problem is that new ideas are usually just combinations of old ideas from somewhere else. Once again -- how can one own something one does not own the parts of? This does not fit the concept of ownership in Islam at all. Also, even in the west it is not the idea that gets protection, it is the expression of it in tangible form. If you express the same idea differently then it is not counted as infringement -- such as Microsofts copy of Apple's operating system's "look and feel." Although this seems, from the quotes above, to be changing now.

Finally, it is obvious that the ideas and words in a book are the benefit of the book, and the benefits of a thing belongs to the owner. This benefit then, belongs to the questions surrounding rent, and this has already been widely covered by the scholars through the ages.

Problems with legal enforcement

Copyright laws are a vague, something Islamic law is clear of. Once the ruling is know, then the Muslim judge has firm criteria to go by. In contrast, take a look at this author said as follows:

The U.S. Constitution permits Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Under intensive lobbying by the movie, publishing and recording industries, Congress has nudged that "limited" time from the original 17 years in 1789, to the publisher's life plus 75 years today -- a time limit that the U.S. Supreme Court recently approved.

For this "limited" time, Copyright law essentially grants the author the exclusive rights to copy or reproduce the work, make derivative works, distribute copies of the work (sell, give away, lease or license), and to perform the work, and, of course, to keep others from doing the same.

The law recognizes that many uses of copyrighted works -- even without the permission of the copyright holder -- are not an infringement. While there is no "right" as such to make a fair use, the making of such a use is not an infringement.

Thus, if you make copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, it is not an infringement of the copyright, even if the copyright holder does not want you to do so.

This isn't black and white, of course. In deciding whether a use is fair or not, courts will consider a number of factors: Did you make the copies for commercial purposes? Does the copy deprive the copyright holder of revenues? Did you copy all, or substantially all, of the work, or just a small portion? The less of the work copied, the less commercial and the less impact on the copyrighted work, the more likely it is to be considered "fair."

http://www.theregister.co.uk/content/6/32004.html

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It is clear from the above and what preceded it that defining intellectual property and how it is established is a complicated mess. Let me ask some quasi-rhetorical questions regarding legal and economic consequences of copyright laws:

Copyrights and patents have a limited timespan in the west, or are your going to go all the way with your analogy of ownership, or follow western footprints in this by setting arbitrary timelimits?

If you are not going to restrict the periods, isn't this going to put a brutal stop to innovation in society? If you are not, then how is this analogous to ownership?

If somebody claimed to own an idea, how would a judge handle this? What if somebody disputed his claim?

If I read the sentence in an article, does this mean I cannot use a sentence of his without asking the author? Isn't this an enormous burden to put on the intellectual activity of muslims? Does muslims need more restrictions on their intellectual and cultural lives?

If the idea of intellectual property neither has an anology in islamic law, nor a textual basis, nor a basis in consensus, how are you going to derive the rules? How are you going to avoid mixing in the philosophy and methodology of man-made law? More importantly, who is the mujtahid doing this?

Some of those who claim scholarship argue that "owning a something does not necessarily give you the right to make another copy of it. A simple example they give is money. If I have a US$100 bill, I have the ownership-based right to use it as I wish. However, I do not have the legal right to make "copies" of the US$100 bill, as most of us would reasonably agree."

The answer to this fallacious argument is that copying USD bills would be haram if it is for the purpose of forgery (cheating,) which is another issue all together. That is why copying a dollar bill on on a regular sheet of paper wouldn't be haram at all. In any case, this has absolutely nothing to do with whether an idea can be owned.

They also argue that the danger of breaking copyright laws is clear: you would be wronging others, and the Prophet (Allah bless him & give him peace) said, "Wrongs are darknesses on the Day of Judgement." The warnings against wronging others are frequent in the Qur'an and Sunnah.

The answer is that you haven't shown that breaking copyright laws is wrongdoing. What is really dangerous is to claim to be haram what is not haram by an ijma3 that is as clear as it gets.

Conclusion

For those associated with the hanafi school, here is a quote to think about from the book "Badaa'i^ Al-Sanaa'i^" in the section on the conditions for sound sales transactions:

The permissability of renting has been established in spite of analogy (which says it should not be allowed) due to peoples use of it in their dealings, so it is not allowed to rent something that is not normally rented.... For this reason it is not allowed to rent books and the like, and there is no rent due if someone did it.

So the Hanafi school considers the ideas in a book "benefit", not property, and he even does not allow the renting of it, let alone the sale of it as property.

Moreover, if it really was property, then how can you buy a book and the conditional right to the so called intellectual property in the same contract? Wouldn't this be two contracts in one? Like the buying the fruits on a tree on the condition that they will be left on the tree?

Finally, how can someone claim to invent an entirely new section of fiqh when he is not a mujtahid? Or has western law and legal philosophy become an acceptable substitute for Thaahir al- Riwaayah?